| Case Name: C G Fry & Son Limited v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35
Commentary:
The Supreme Court unanimously allowed the appeal of C G Fry & Son Limited (‘the Appellant’), a developer operating in South West England. Lord Sales, giving the judgment of the court, held that Somerset Council (‘the Council’) had acted unlawfully in declining to determine the Appellant’s application to discharge conditions attaching to the reserved matters approval of its multi-phase development. The Council withheld consent because a Habitats Regulations Assessment (HRA) into potential impacts on a protected wetland had not been conducted.
Lord Sales agreed with the Court of Appeal that, properly interpreted, the requirement to conduct an appropriate assessment pursuant to the Habitats Regulations potentially applies at all stages of the planning approval process, including to reserved matters approval and discharge of conditions.
However, the Habitats Regulations did not directly apply in this case. The potentially impacted wetland was a Ramsar site, which attracts protection under national policy equivalent to that conferred by the Habitats Regulations. Lord Sales held that the effect of the Appellant’s development on the Ramsar site was legally immaterial to the discharge of conditions requiring approval of specific reserved matters, such as tree protection.
Rather than limiting its considerations to matters relevant to, say, tree protection, the Council relied on the national policy in order to revisit the principle of development. Lord Sales held that this approach was unlawful. Once a developer is granted a planning permission, there is a fundamental change in the legal position. The developer acquires statutory rights to develop the land, which are not defeasible by government policy. Where such rights are conditional on reserved matters approval, this conditionality is delimited by the content of the reserved matters themselves. The same analysis applies to conditions attached to reserved matters approval.
Full Commentary
Case summary prepared by Archie Hunter
Case Name: South Darenth Farms and Cold Store Company Ltd v Secretary of State for Housing, Communities and Local Government & Ors
Commentary:
This was an unsuccessful statutory appeal pursuant to the provisions of section 289 of the Town and Country Planning Act 1990 (TCPA 1990) bought by South Darenth Farms and Cold Store Company Limited (“South Darenth”), the lessee of a portion of the Hawkspare Site in Dartford. In August 2024, Dartford Borough Council issued an enforcement notice alleging that the site had undergone a material change of use to a mixed use without planning permission, alongside associated operational development that “facilitated” that change of use.
The enforcement notice required South Darenth to cease all elements of the mixed use and to remove physical works including a retaining wall, fencing, and the main entrance gate, all said to facilitate the unauthorised use.
South Darenth appealed to the Secretary of State under section 174(2)(a), (b), (c), (d), (f), and (g) TCPA 1990. The Inspector appointed by the Secretary of State dismissed the appeal (save for minor modification) on 6 May 2025.
The principal issue concerned s.174(2)(c) and whether the fences and retaining walls were lawful because they constituted permitted development under Class A, Part 2, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). South Darenth argued that the fencing and gates were permitted development under Class A and Article 3(5) of the GPDO did not apply, because Class A relates to operational development, not use, and therefore the Inspector had erred in concluding that the unlawfulness of the site’s use precluded reliance on permitted development rights. The Inspector, however, held at paragraphs 42 and 46 of his decision that, because the use of the land was unlawful, Article 3(5) prevented reliance on GPDO rights for the fencing and walls. Consequently, he upheld the enforcement notice.
The Secretary of State accepted that the Inspector had erred on Article 3(5) as Article 3(5) applies only where permission is “granted in connection with an existing use”; Class A development is independent of use and therefore unaffected. However, it was successfully argued that the error was immaterial as even without that mistake the Inspector would have reached the same conclusion on the basis that the Murfitt principle applied and the walls and fences were integral to the unlawful mixed use. The application for permission to appeal was refused.
Full Commentary
Case summary prepared by Amy Fender
Case Name: R (HyNot Limited) v Secretary of State for Energy Security and Net Zero and Anor [2025] EWHC 2644 (Admin).
Commentary:
This case concerned a challenge to a Carbon Capture and Storage (“CCS”) development under the Irish Sea. CCS is a process whereby emissions are captured before reaching the atmosphere and redirected to depleted reservoirs or aquifers to be stored. This is an application for permission to judicially review.
The Claimant is a company limited by guarantee which was incorporated just one day before the claim was filed. Their name, “HyNot”, speaks to their opposition to the HyNet Cluster which includes infrastructure for both the transport and capture of carbon dioxide and the production and transport of hydrogen by underground pipelines and storage. Only the transport and capture of carbon dioxide relate to the decisions under challenge.
On the one hand, the Claimant views CCS as problematic because it redirects investment away from proven climate solutions and towards efforts which inherently rely upon the continued extraction and usage of fossil fuels. On the other hand, government policy regards CCS as a “necessity, not an option” for the pathway to net-zero, and the proposed infrastructure development is of national significance insofar as it is viewed as critical for net zero and that it promises to substantially boost the local and national economies.
The Claimant sought to advance three grounds of challenge. First, the Claimant submitted that there was no sufficient assessment of the risks from major accidents and disasters (“MAD”) posed by the Development, and/or there was no sufficient consultation with the public as to those MAD risks, relying upon R (Finch) v Surrey County Council [2024] UKSC 30. Second, the Claimant suggested that the Secretary of State failed to properly assess the cumulative effects of the Development on climate change. Third, the Claimant contended that the Secretary of State failed to comply with the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (“the Habitats Regulations”) by failing to provide cogent reasons for rejecting the advice from the two expert statutory nature consultation bodies (“SNCBs”).
In refusing permission to apply for judicial review, Saini J concluded that all three grounds of appeal were unarguable. Saini J also noted that in any event, the Claimant did not bring the application “promptly”, pursuant to the requirements of CPR r.54.5(1)(a), and accordingly, permission would have been refused irrespective of his conclusions on the advanced grounds of challenge. Obiter, Saini J also thought that there was “substantial force” behind the counsel for the Secretary of State’s contention that the Claimant needed to satisfy the heightened test of reasonably good prospects of success, owing to the urgency, permission hearing length, substantial written and oral submissions, and that the claim “substantially affects” the interests of the third party (the Developer). [70]
Full Commentary
Case summary prepared by Adam Choudhury
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